Australian Year Book of International Law
Donald R Rothwell[*] and Ben Olborne[**]
Nulyarimma v Thompson; Buzzacott v Minister for the Environment
 FCA 1192; 165 ALR 621
Federal Court of Australia
Wilcox, Whitlam and Merkel JJ
The status of ‘genocide’ in Australian law was a matter of some comment throughout the 1990s, gaining more prominence as claims have been made by indigenous Australians that they have been subjected to acts of genocide. In Nulyarimma v Thompson and Buzzacott v Minister for the Environment, two separate claims of genocide being committed against indigenous Australians were joined and heard together. Nulyarimma concerned an appeal by four persons against a decision by Crispin J of the Supreme Court of the Australian Capital Territory upholding a decision by the Registrar of the Magistrates Court of the ACT to refuse to issue warrants for the arrest of a number of federal parliamentarians on information that they had committed acts of genocide. In particular, it was alleged that the Prime Minister, Mr John Howard, Deputy Prime Minister, Mr Tim Fisher, Senator Brian Harradine, and Ms Pauline Hanson through formulation of the Commonwealth Government’s ‘Ten Point Plan’ and subsequent passage through the Commonwealth Parliament of the Native Title Amendment Act 1998 (Cth) had committed an act of genocide. In Buzzacott, proceedings were commenced against the Minister for the Environment, Senator Robert Hill, and the Minister for Foreign Affairs, Mr Alexander Downer, alleging acts of genocide through their failure to apply for inclusion under the 1972 Convention for the Protection of the World Cultural and Natural Heritage of the lands of the Arabunna People, which included Lake Eyre in South Australia.
All members of the Federal Court gave the cases thorough consideration, and while ultimately the applications for relief were dismissed, the discussion on the status of genocide in Australian law is of considerable importance. The argument before the Full Federal Court was grounded as follows:
• The prohibition against genocide is a customary norm of international law;
• Australian municipal law incorporates customary norms of international law without the need for legislation; and
• The universal crime of genocide, as a customary norm of international law, has been incorporated into the common law of Australia.
In this respect, Wilcox and Whitlam JJ were in agreement that the crime of genocide did not exist in Australian law, notwithstanding its status in international criminal law. Independent of the existence of the crime under the terms of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, Wilcox J was prepared to accept that the prohibition of genocide ‘is a peremptory norm of customary international law, giving rise to a non-derogatable obligation by each nation state to the entire international community.’ It was also accepted that the obligation imposed by customary international law upon a state is to extradite or prosecute any person within its territory who appears to have committed an act of genocide. It followed from this that it would be constitutionally permissible for the Commonwealth Parliament to legislate for the crime of genocide. However, Wilcox J rejected that in the absence of legislation it would be possible to put a person on trial for the commission of an act of genocide:
If this were the position, it would lead to the curious result that an international obligation incurred pursuant to customary law has greater domestic consequences than an obligation incurred, expressly and voluntarily, by Australia signing and ratifying an international convention. Ratification of a convention does not directly affect Australian domestic law unless and until implementing legislation is enacted. This seems to be the position even where the ratification has received parliamentary approval, as in the case of the Genocide Convention.
This remained the position notwithstanding that genocide was considered an international crime, as it was Australian law which required that the crime be recognised as punishable. As there was no relevant statute, the only basis for the crime could be the common law.
In reviewing whether genocide could be considered as recognised as a crime under the common law, Wilcox J saw this as opening up the debate between the ‘incorporation’ approach and the ‘transformation’ approach to international law in relation to domestic legal systems. However, it was concluded that it was difficult to make a general statement regarding how customary international law should be received and that it was more a policy issue for the courts. In this instance, Wilcox J noted: ‘If there is a policy issue, I have no doubt that it should be resolved in a criminal case by declining, in the absence of legislation to enforce the international norm.’
In his concurring opinion, Whitlam J took a similar approach to that of Wilcox J, though he focused more on the question of the exercise of universal jurisdiction. In this regard, he paid particular attention to the House of Lords decision in R v Bow Street Magistrate; Ex parte Pinochet (No 3), and the Supreme Court of Israel decision of Attorney-General of Israel v Eichmann.[13 ]However, Whitlam J was not convinced that either these or other decisions provided support for the proposition that ‘universal jurisdiction provides, by itself, a source of jurisdiction for municipal courts to try international crimes.’ Even if it were accepted that customary international law formed part of the common law, there was nothing to suggest that courts in common law countries have jurisdiction in respect of international crimes over which states may exercise universal jurisdiction. Rather, this is ultimately a matter of sovereignty which will depend upon the constitutional arrangements of each common law country. In this respect, Whitlam J noted that, notwithstanding the obligations imposed upon Australia with respect to genocide, ‘[t]he exercise of universal jurisdiction to prosecute such an offence is a matter for the Commonwealth, yet parliament has expressly abolished common law offences under Commonwealth law.’
Justice Merkel dissented as to the status of genocide in Australian law, though ultimately was satisfied that no grounds were established for the issue of warrants for the arrest of the named individuals.[17 ] An extensive review was undertaken of the ‘incorporation’ and ‘transformation’ approach towards international law and municipal law with an assessment of the position in England, Canada, New Zealand, and Australia. The ‘source view’ of Dixon J in Chow Hung Ching v Rwas seen to apply in Australia, holding ‘sway over the incorporation or legislative adoption approaches.’ This approach was declared as follows:
1. For customary international law to be adopted in municipal law, the doctrine must be one which has attained the general acceptance or assent of the community of nations;
2. The court must also consider that the rule is to be treated as having been adopted or received as a source of law;
3. A rule will not be adopted or received as a source of domestic law if it is inconsistent with a statute;
4. Customary international law will not be adopted if it is inconsistent with, and therefore conflicts with domestic law;
5. Once adopted or received into domestic law, the rules of customary international law, have the force of law; and
6. International law will evolve and change from time to time, which can be established by evidence and other material.
As to the acceptance of genocide as a crime in Australian law without the need for legislation, piracy was referred to as an example of where it has been long recognised that jurisdiction vests in a municipal court in respect of an international crime without the need for legislation conferring that jurisdiction. A further review of the decisions in Eichmann and Pinochet, confirmed for Merkel J that for customary international law, whether with respect to either civil or universal crimes, incorporation into municipal law by legislation was not essential, and it was concluded:
there is no binding authority or persuasive jurisprudential support for the Commonwealth’s submission that adoption of customary international civil law or criminal law in relation to universal crimes, as such, into Australian municipal law requires legislation to that effect.
It then became necessary to consider whether the recognition of genocide as a source of domestic law would be inconsistent with municipal law, the policy of the common law, or public policy. However, none of these were seen to constitute bars in the present case. The primary policy consideration remained whether the courts were usurping the role of the legislature through recognition of genocide as a crime. However, Merkel J also dismissed this concern:
The courts are not creating a new offence by reference to the court’s view of public policy; rather the courts are determining, by reference to criteria established by the common law, whether by adoption, municipal law is to recognise and therefore receive that which has evolved into a crime of universal jurisdiction in international law.
It would be anomalous for the Municipal Courts not to continue their longstanding role of recognising, by adoption, the changes and developments in international law. Accordingly, in my view there is no inconsistency involved in the common law continuing to recognise the historical, and increasingly important, role of customary international law, always of course, subject to the legislature’s power to abrogate, vary or confirm the operation of the common law of Australia in that regard.
Policy considerations which supported the recognition in this case of the crime of genocide were the executive and legislative support given in Australia to genocide as an international crime. In concluding that the offence of genocide was an offence under the common law of Australia, Merkel J noted:
I have no difficulty in concluding that the ‘end’ or ‘goal’ which the law serves will be better served by treating universal crimes against humanity as part of the common law in Australia. Further, a decision to incorporate crimes against humanity, including genocide, as part of Australia’s municipal law at the end of the twentieth century satisfies the criteria of experience, common sense, legal principle and public policy.
However, notwithstanding the different views of Merkel J to those of Wilcox and Whitlam JJ, as all members of the Court were of the view that either genocide had no status in Australian law or that there was no foundation in the charge of genocide, the applications for relief were dismissed.
AMS v AIF; AIF v AMS
 HCA 26; 163 ALR 501; 73 ALJR 927
High Court of Australia
A mother and father sought various custodial and guardianship orders in relation to their child in AMS v AIF, and AIF v AMS. Orders had been made granting sole custody to the mother, but with liberal access for the father. The mother sought to relocate within Australia and to take the child with her. The proceedings involved consideration of whether the applicable law was state or federal, and of the consistency of an order restraining the mother from altering the residence of the child with the constitutional protection of freedom of interstate commerce. The mother sought to rely on provisions of the 1966 International Covenant on Civil and Political Rights and the 1979 Convention on the Elimination of All Forms of Discrimination against Women to support her argument as to the importance of her right of freedom of movement.
Several members of the High Court affirmed that municipal legislation was to be interpreted and applied so far as its language permits, or where ambiguous, in conformity with established rules of international law. Here, however, the relevant international instruments were ‘aspirational rather than normative’ and reflected and repeated, rather than resolved, the issues arising under the municipal legislation. Justice Kirby considered the mother’s arguments as to the relevance of the international instruments in more detail. He held that they did not pay sufficient attention to the 1989 Convention on the Rights of the Child,  and, in particular, Article 9(3) which expounds a child’s right to ‘maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests’.
X v Minister for Immigration and Multicultural Affairs;
Y v Minister for Immigration and Multicultural Affairs
 FCA 995; 164 ALR 583
Federal Court of Australia
The standing of the 1989 Convention on the Rights of the Childin Australian law came under consideration in the case of X v Minister for Immigration and Multicultural Affairs and the related case of Y v Minister for Immigration and Multicultural Affairs. At issue in both cases was whether a non-citizen child seeking to enforce the duties of a guardian was required to institute proceedings by way of a tutor. Both X and Y were seeking these orders in relation to applications made for the granting of refugee status. In making orders that X and Y were entitled to bring the proceedings in the absence of a tutor, North J made several observations regarding the Convention on the Rights of the Child.
Mindful of the High Court’s decision in Minister for Immigration and Ethnic Affairs v Teoh, North J considered the status of the Convention in the context of this case, especially the requirement in Article 3(1) that ‘the best interests of the child shall be a primary consideration’. Here the relevant statute was the Immigration (Guardianship of Children) Act 1946 (Cth), enacted well before the adoption of the Convention, and North J noted:
It is difficult to see how pre-existing legislation can be construed in the light of a latter ratified international instrument alone. But where the international instrument was a product of an historical process of recognition of human rights, it may be that legislation enacted in the period of growing recognition of the rights should be construed consistently with the context of the development of those rights.
Account was taken of the Full Court of the Family Court decision in B and B[38 ]in which a similar issue arose in the context of legislation enacted in 1975 and its relationship with the Convention. In that instance the provisions of the Convention were considered relevant when construing the statute, and North J favoured a similar approach in this case given the adoption of the 1924 Declaration of the Rights of the Child by the League of Nations, and the subsequent developments in general human rights law and also children’s rights. It was considered that the statute was enacted at a time when:
the recognition of the rights of the child was advanced. It should therefore be construed at least consistently with the recognition which those rights had achieved at the time of enactment. Such an approach also speaks against a construction which involves procedural barriers against the enforcement of such of those rights as conferred by domestic law.
It was concluded that given the status of the Convention in Australian law and the history of the rights of children, that the finding that a tutor was not necessary to enable the enforcement of a statutory obligation was justified.
It was also noted in the alternative, that the common law in Australia was influenced by the provisions of the Convention, and again support was sought from the decision in Teoh. The impact of the Convention was seen in the case of the functions conferred upon the Human Rights and Equal Opportunity Commission (HREOC) and legislation permitting children the right to participate in proceedings of the Family Court making ‘the terms of the Convention a significant influence in the process of development of domestic law.’
Sue v Hill & Anor; Sharples v Hill & Anor
 HCA 30; 163 ALR 648
High Court of Australia
Section 44(i) of the Australian Constitution provides that any person who is ‘a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power’ shall be incapable of being chosen or of sitting as a member of the Federal Parliament. After elections for the Federal Parliament in 1998, the petitioners challenged Mrs Hill’s election as a Senator on the basis that she did not satisfy the requirements of s 44(i). Mrs Hill was born in the United Kingdom
in 1960, and was a citizen of the United Kingdom by birth. She became a British citizen, with the passing into force of the British Nationality Act 1981 (UK). She moved to Australia in 1971, and subsequently married an Australian citizen. She has since resided in Australia. In 1998, she applied for and was granted Australian citizenship and an Australian passport. At that time, there was no requirement, in taking up Australian citizenship, for the renunciation of foreign citizenship, nor did the taking up of Australian citizenship have the effect of renunciation of her British citizenship under United Kingdom law. After her election, Mrs Hill became aware of steps that could be taken to renounce her British citizenship, and undertook to do so. It appeared that, since taking Australian citizenship, Mrs Hill’s sole loyalty was to Australia.
After disposing of a number of preliminary questions relating to its jurisdiction, the High Court, sitting as the Court of Disputed Returns, turned to consider whether Mrs Hill was a citizen of a foreign power at the time of the election. The Court held that the United Kingdom, despite its former position as a colonial power and the historical legislative, executive and judicial links with Australia, was, at the time of the election in 1998, a foreign power. It also held that Mrs Hill was a citizen of that foreign power. In answering that last question, Gleeson CJ, Gummow and Hayne JJ held that the Court should look to the classification given to Mrs Hill under United Kingdom law and agreed with Gaudron J that, at the material time, Mrs Hill was regarded as a British citizen under that law. Justice Gaudron held that the question whether a person is a citizen of a country is, as a general rule answered by reference to the law of that country, but there were some circumstances in which an Australian court might refuse to apply the law of another country, such as where the foreign citizenship law ‘does not conform with established international norms or … involves gross violation of human rights’. In respect of persons having dual citizenship, a possibility recognised by both the common law and Australian statute, it was necessary that a person take reasonable steps to renounce his or her foreign citizenship in order to be eligible to stand for election and assume office in the Commonwealth Parliament. Mrs Hill’s failure to do so before the election meant that her election could not stand.
Abebe v Commonwealth of Australia; Re Minister for Immigration and Multicultural Affairs of the Commonwealth & Anor; Ex parte Abebe
 HCA 14; 162 ALR 1; 73 ALJR 584
High Court of Australia
These proceedings involved a challenge to the constitutionality and extent of the process established in Australia for judicial review of decisions made as to refugee status. The applicant, an Ethiopian national, who alleged that she had been beaten and raped while in detention, was refused recognition as a refugee upon entering Australia. The tribunal of fact held that her story was not reliable and that she had not made out that she had a well-founded fear of persecution on account of any of the grounds enumerated in the 1951 United Nations Convention Relating to the Status of Refugees definition of refugee.
The High Court did not consider the merits of the applicant’s claim in detail. However, the Court confirmed earlier jurisprudence that, in determining whether an applicant has a current well-founded fear, the decision-maker has to form an opinion as to what is likely to occur if the applicant is returned to their place of origin, and in doing so, reference to past events may play an important, although not conclusive, role. The Court also reaffirmed that a claim for refugee status does not necessarily fail if the decision-maker is not affirmatively satisfied as to the existence of one or more of the facts alleged by the complaint as satisfying the elements of the refugee definition. Rather, it is the degree of probability of occurrence or non-occurrence of a fact relied upon by the applicant that is important in the decision-maker’s task of determining the chance that the applicant was persecuted as alleged.
Two members of the Court stated that in assessing the credibility of applicants and their failure to raise certain allegations at the first opportunity, regard should be had to cultural sensitivities and, in the circumstances of this case, the fact that an applicant alleging that she had been raped may be reluctant to talk about her experiences. The same judges also noted that it should not be surprising that an applicant ‘may yield to temptation to embroider an account of his or her history’ given that they may be ‘engaged in an often desperate battle for freedom, if not life itself’. These factors should be taken into the account by the tribunal of fact in assessing an applicant’s credibility.
Minister for Immigration and Multicultural Affairs v Eshetu; Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Eshetu
 HCA 21; 162 ALR 577
High Court of Australia
As with the Abebe matters, these proceedings were primarily concerned with the extent and nature of the municipal processes for judicial review of refugee status decisions. Members of the High Court also took the opportunity to reaffirm earlier jurisprudence as to the meaning of ‘well-founded fear of persecution’. Eshetu, an Ethiopian citizen, alleged that he feared persecution on return to Ethiopia as a result of his political activities as a member of the anti-governmental Student Council at the University of Addis Ababa. His claim for refugee status was dismissed by the decision-maker on the basis that he had not established that his fear of persecution was well-founded. The High Court held that no error had been made.
Justices Gaudron and Kirby noted that Australian authorities provide that an applicant has a well-founded fear of persecution if there is a real risk of persecution, in the sense of a risk ‘that is not remote, regardless of whether it is less or more than 50%’, that the well-foundedness of an applicant’s fear is to be assessed at the time of the application for refugee status, and that an applicant need not possess a political opinion, it being sufficient that one may be imputed to him or her. Their Honours dissented on this last point, being of the opinion that the decision-maker had not given sufficient weight to the political opinion to be attributed to the applicant. Justice Gummow reaffirmed that the refugee definition involves subjective and objective elements, in that ‘there must be a state of mind, a fear of being persecuted, and a basis for that fear which is well-founded.’ However, he observed that the view of Gaudron J in Chan Yee Kim v Minister for Immigration and Ethnic Affairs that, if the experiences of the applicant produced a well-founded fear of being persecuted, ‘then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality’ did not represent the state of authority in Australia.
Diatlov v Minister for Immigration and Multicultural Affairs
 FCA 468; 167 ALR 313
Federal Court of Australia
The status of a stateless applicant for a protection visa under the Migration Act 1958 (Cth) was considered in Diatlov v Minister for Immigration and Multicultural Affairs. Here the applicant was an ethnic Russian who had lived virtually all of his life in Estonia. The Refugee Review Tribunal had affirmed the decision of the Minister not to grant a protection visa, and review was sought by the Federal Court.
The principal question for review was whether the Tribunal had erred in its findings regarding Diatlov’s entitlement to residency in Estonia, and if this was relevant in the context of making a determination for a stateless person. Justice Sackville reviewed the state of relevant authorities, and noted an inconsistency between determinations on the meaning of the 1951 Refugee Convention, Article 1A(2) as applied to stateless persons.It was determined that when interpreting a treaty, while the text of the treaty is to be given primacy, the context, object, and purpose must also be considered. In this case, the relevance of the 1954 United Nations Convention Relating to the Status of Stateless Persons could not be ignored, especially as it came prior to the adoption of the 1967 Protocol relating to the Status of Refugees. Justice Sackville was of the view that the Stateless Persons Convention ‘forms part of the context’ when construing the Refugees Convention.
Given the primacy of the need to demonstrate eligibility for protection as a refugee, Sackville J noted:
Having regard to the context, it seems to me difficult to construe the Refugees Convention, as amended by the 1967 Protocol, as protecting a stateless person who is outside the country of his or her former habitual residence and unable to return, regardless of whether the person’s inability to return is associated with a fear of persecution for a Refugees Convention reason. To do so would be to render superfluous much of the Stateless Persons Convention.
However, it was stated that if a stateless person is not subject to protection under the Refugees Convention, it does not follow they will also not be entitled to protection under the Stateless Persons Convention. The later convention was adopted to cover gaps in the area.
Nagaratnam v Minister for Immigration and Multicultural Affairs
 FCA 176; 164 ALR 119
Federal Court of Australia
Lee, Moore and Katz JJ
Whether persons who suffered from physical mistreatment while in detention met the Refugee Convention criteria was at issue in Nagaratnam v Minister for Immigration and Multicultural Affairs. Here the applicant had been detained as a suspected member of the Liberation Tigers of Tamil Eelam in Sri Lanka (LTTE) and had been beaten and tortured in detention. The Refugee Review Tribunal had denied an application for a protection visa under the Migration Act 1958 (Cth) on the basis that he was not a refugee. The Tribunal was of the view that there was no evidence that the treatment of the applicant amounted to discriminatory treatment of Tamils.
The Court rejected this view, with Lee and Katz JJ writing the leading judgment. They gave particular attention to the earlier Federal Court decision of Paramananthan v Minister for Immigration and Multicultural Affairs in which similar facts had been considered. Of particular concern in both cases was the making of a determination as to whether detention of a person amounted to persecution for a Convention reason. It was noted that this is a question of law and fact depending on the circumstances in which the law or government policy is being implemented. However, much will depend on the knowledge of those who undertook the detention and their knowledge of the possible consequences. As such:
even though those detained will not be selected for such physical mistreatment by those who administer the physical mistreatment upon a ground which equates to one of the Convention reasons and even though those selecting the detainees are unwilling that such physical mistreatment should occur, then those who detain such persons will be taken to have caused such physical mistreatment. As such persons have been selected for detention upon a ground which equates to one of the Convention reasons, the act of detaining such persons will amount to persecution for a Convention reason.
On the above basis, it was found that the Tribunal had made an error of law and the decision was set aside and returned to the Tribunal for further determination. Justice Moore agreed with this view.
On the question of Nagaratnam having been tortured, Lee and Katz JJ assessed the extent of Australia’s obligations under the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[75 ]It was noted that Article 3 of the Convention provided an obligation upon state parties to not return or extradite persons who it was believed would be in danger of being subject to torture. Further, for a finding of torture to be made, there was no need to show that torture would have been inflicted on a discriminatory ground. If the claim under the Refugees Convention had not been made out in this instance, the Court noted that Australia would have been at risk of breaching its international obligations under the Torture Convention if it had sought to return the applicant to Sri Lanka. Reference was made to relevant decisions of the Committee against Torture.
Minister for Immigration and Multicultural Affairs v Abdi
 FCA 299; 162 ALR 105
Federal Court of Australia
O’Connor, Tamberlin and Mansfield JJ
The making of a determination on eligibility for refugee status under the 1951 Convention relating to the Status of Refugees in the context of on ongoing civil war and domestic strife were at issue in Minister for Immigration and Multicultural Affairs v Abdi. Here the refugee applicant had fled Somalia in late 1997, and upon arriving in Australia applied for a protection visa claiming a well-founded fear of persecution within the meaning of the Convention. The Minister’s delegate had refused the protection visa, a decision upheld by the Refugee Review Tribunal. Justice Wilcox had set aside the decision of the Tribunal and the Minister had appealed to the Full Federal Court.
The Court acknowledged the difficulty in assessing refugee applications from persons fleeing a civil war when seeking to determine whether the Convention grounds were the sole grounds for the well-founded fear. However, it was noted that the Convention ground should not be the only reason for the fear; such an approach would render the Convention protection ‘largely ineffectual’.[79 ] The House of Lords decision in Adan was noted, however the Federal Court was not prepared to accept that on its own a clan or race-based civil war may not amount to persecution in the Convention sense. Evidence may be available to show that ‘the objective of a war is to harm the opposing party for one or more Convention reasons’, in which case persecution would be made out. It was further noted:
In our view the statements made in Adan travel beyond the requirements of the Convention by imposing additional or differential requirements where the civil war in question is based on racial or clan grounds and not grounds such as a struggle for power or dominance, the acquisition of territory, the appropriation of property, or the acquisition of access to strategic resources or facilities. In the latter examples, examples where civil war is not directed to racial persecution, it is necessary, or course, to establish the existence of selective harassment on a Convention ground, whereas in the former example such a ground is already present because the civil war is properly characterised as race based.
Illustrations of civil wars that would fall within the Convention definition were those in Cambodia and Rwanda. It was concluded that the failure to look at the reasons for the civil war and to demand additional factors in order to meet the Convention definition was an error ‘because it eliminates a critical step in the process, namely, analysis of the objective and conduct of the war’.
The facts of this case, however, were a clear instance of where the applicant had a fear of ‘non-Convention related revenge’ following a dispute between his father and another group. This was not a basis for demonstrating a well-founded fear of persecution. Likewise, there was no relevant distinction to be made between combatants and non-combatants, rather the emphasis is on whether groups will be subject to selective harm for a Convention reason.[85 ]The matter was remitted to the Refugee Review Tribunal for further consideration.
AB v The Queen
 HCA 46; 165 ALR 298
High Court of Australia
The appellant was extradited from the United States to Australia to face 28 charges of sexual abuse of children. When in Australia, he voluntarily disclosed to the authorities further conduct that resulted in the laying of 39 additional charges. He co-operated fully with the Australian authorities in relation to these additional charges, and indicated to the United States authorities his consent to being prosecuted in relation to them. The Australian government sought, and obtained, the consent of the US authorities to proceed in respect of the additional charges. The appellant pleaded guilty in relation to all the charges and was sentenced to a maximum term of 18 years imprisonment. He appealed against the severity of the sentence to the Court of Appeal of New South Wales, which dismissed his appeal. He then appealed to the High Court. Before this Court, he expressly raised the rule of speciality for the first time, submitting that his waiver of rights under extradition law had not been adequately taken into account in consideration of his sentence. The High Court, by majority, agreed and allowed his appeal.
Members of the Court approached the rule of speciality in somewhat different terms. That rule, which provides that the state to which a person is surrendered will not try the person other than in respect of the charges for which surrender was sought and granted, was contained in the extradition treaty between Australia and the United States and had statutory force. It has also been considered by the High Court on a number of occasions.
Justice McHugh held that the rule of speciality was of no avail to the appellant, and that he had no relevant rights to waive. Whatever rights there were belonged to the United States government, which had granted permission to the Australian authorities to proceed in respect of the additional charges. The fact that the appellant had co-operated in relation to the additional charges did not entitle him to any further credit than he would have received for bringing the additional offences to the notice of the authorities and for confessing to them. Justices Gummow and Callinan held that the appellant had in fact waived his extradition rights, and that the public interest in such a waiver — for example, the avoidance of the difficulty and cost of further extradition proceedings, and encouraging full revelation of criminality and waiver of rights by other extradited persons — was a matter to which the courts below should have had regard.
Justice Kirby agreed with McHugh J that the ‘legal rights involved do indeed belong to the United States’ but, he continued, ‘the clear and practical consequence of those rights afforded a privilege to the appellant to object to prosecution upon any of the [additional] offences’. It was, therefore,
a play on words to say that the appellant’s actions did not, and could not constitute a ‘waiver’ of rights belonging to him. In every practical sense they did … If the appellant had insisted on conformity with the principle of speciality, there would have been no immediate prospects of obtaining the consent of the United States to his being detained and tried for the [additional] offences. This much follows from extradition law. It is clearly settled.
His Honour agreed with Gummow and Callinan JJ that the failure of the courts below to take the waiver into account when considering the appellant’s sentence warranted allowing the appeal.
Collins v State of South Australia
 SASC 257
Supreme Court of South Australia
The status of international instruments under state laws has not recently come in for much attention by state courts. However in Collins v State of South Australia the Supreme Court of South Australia was asked to consider the application of both a soft law instrument and a treaty. The applicant, Collins, sought from the Supreme Court a declaration that South Australia was bound to treat prisoners in accordance with the provisions of the ‘Standard Minimum Rules for the Treatment of Prisoners’ adopted by the 1955 United Nations Congress on the Prevention of Crime and the Treatment of Offenders. It was also argued that his treatment as a prisoner was in breach of Article 10 of the 1966 International Covenant on Civil and Political Rights.
On a review of the factual evidence, Millhouse J determined that the applicant’s complaints regarding treatment at the Adelaide Remand Centre were well founded. In assessing the law on the matter, attention was first given to the provisions of the Standard Minimum Rules which were found to not constitute a convention, treaty or covenant. It was noted: ‘They do not impose obligations on signatories. They merely declare principles. Consequently there are no obligations in International Law arising from them.’As the Minimum Rules did not have the force of law, the applicant’s argument on that ground failed.
As to the ICCPR, on the basis of the evidence, Millhouse J was satisfied that the provisions of Article 10 had been breached at the Adelaide Remand Centre. Noting that the ICCPR is a schedule to the Human Rights and Equal Opportunity Commission Act 1986 (Cth), and that the Covenant represents and gives force to the human rights sections of the Act, Millhouse J was of the view that the ICCPR ‘had been enacted into domestic law by virtue of it being a schedule to the … Act.’ In making this determination, reference was also made to the operation of Section 13 of the Acts Interpretation Act 1901 (Cth). However, it was found that under section 6 of the Human Rights and Equal Opportunity Commission Act, the Act did not bind the Crown in right of a state unless expressly provided for and no such provision had been made.
Consideration was also given to whether the ICCPR applied by its own force, and reference was made to various cases discussing the status of the Covenant in Australian law. Justice Kirby’s support for the ‘Bangalore Principles’ was also noted and it was concluded that international law may be a ‘legitimate consideration’ when developing the common law.Reference was also made to the High Court’s judgment in Minister for Immigration and Ethnic Affairs v Teoh, and the subsequent enactment of the Administrative Decisions (Effect of International Instruments) Act 1995 (SA). In relation to the Act it was noted:
The Act makes two things clear. First, there is no redress for this plaintiff or any other plaintiff in this State, arising from international law. As far as I know the only introduction of international treaties into domestic law appears to be the schedules in the Human Rights and Equal Opportunity Commission Act, which makes it clear that such treaties are not binding on the States. Secondly, the effect of the Act in South Australia is to make Australia’s involvement in international conventions “merely platitudinous and ineffectual”.
Reference was made to the outcome of the finding by the United Nations Human Rights Committee in the case of Toonen v Australia, and the subsequent enactment of the Human Rights (Sexual Conduct) Act 1994 (Cth) as providing ‘some hope for the future’.It was also noted the declaration sought in this instance was inappropriate. Concluding with specific reference to the ICCPR, Millhouse J noted ‘[m]uch as I regret it, as a single judge I am not able to give force to the basic human rights set out in these conventions.’ The application for relief was accordingly refused.
Minogue v Human Rights and Equal Opportunity Commission
 FCA 85; 166 ALR 129
Federal Court of Australia
Sackville, North and Kenny JJ
The status of the 1966 International Covenant on Civil and Political Rights (ICCPR) in Australian law has been the subject of some legal and political controversy in recent years. The issue arose again in Minogue v Human Rights and Equal Opportunity Commission. The applicant had complained to the Human Rights and Equal Opportunity Commission (HREOC) that actions of the Victorian prison authorities infringed his rights as a prisoner under the Covenant. However, HREOC declined to entertain the application on the grounds that it had no jurisdiction. The applicant then commenced proceedings before the Court claiming relief against HREOC. That claim was unsuccessful, and the applicant appealed.
With reference to the claims based upon the application of the ICCPR in Australian law the Court noted as follows:
The provisions of an international treaty do not form part of Australian law merely because Australia is a party to the treaty and has ratified it. In consequence, the ICCPR does not of itself operate to give rights to or impose duties on members of the Australian community. Although the HREOC Act was enacted to secure the fulfilment of Australia’s obligations under the ICCPR, the Act does not make the provisions of the ICCPR directly enforceable in Australian courts. Nor have the provisions of the ICCPR upon which the appellant relies been given the force of law in Australia by any other statute. It is because the ICCPR does not give rise to rights or obligations enforceable under Australian law that it cannot give rise to a ‘matter’ which constitutes a ‘justiciable controversy’.
With respect to any argument grounded in the High Court decision of Minister for Immigration and Ethnic Affairs v Teoh that a legitimate expectation existed that the provisions of the ICCPR would be given effect, the Court also dismissed this claim noting that the ‘notion of legitimate expectations does not make provisions of the ICCPR part of Australian law’.
Minogue v Williams
 FCA 1585
Federal Court of Australia
This case involves similar facts to Minogue v Human Rights and Equal Opportunity Commission, though on this occasion the applicant was seeking relief before the High Court against the General Manager of HM Barwon Prison. The applicant contended that there existed legally enforceable rights under the 1966 International Covenant on Civil and Political Rights (ICCPR), and it was argued that Article 10(1) had been infringed. The proceedings originally commenced before the High Court, however Hayne J was prepared to remit the matter to the Federal Court pursuant to the provisions of the Judiciary Act 1903 (Cth). Before the Federal Court, Weinberg J considered whether the claim gave rise to a matter arising under a treaty consistent with section 75 of the Constitution, and the Judiciary Act.
Notwithstanding that Australia has ratified the ICCPR, Weinberg J noted that this does not mean ‘that an individual may obtain legal redress in relation to an alleged contravention of that treaty. The rights and obligations specified in the ICCPR are not, it is submitted, incorporated into Australian domestic law, and cannot be enforced directly in Australian courts.’ Support for this view was found in a number of recent High Court decisions,  and the earlier Federal Court decision dealing with the applicant. On the basis of this authority, it was concluded that there existed no jurisdiction for the High Court to entertain the action based as it was upon a breach of the ICCPR: ‘It is clear that although the ICCPR may properly be taken into account in construing domestic legislation which is ambiguous, it is not invoked for that purpose by the applicant.’ Here the applicant was seeking to directly rely upon the ICCPR as the source of a right and that had been repeatedly rejected by previous decisions of the courts.
It had also been argued that the partial incorporation of the ICCPR in the Evidence Act 1995(Cth), section 138 (3)(f) provided further ground for support that reliance could be placed upon the provisions of the Covenant. However, Weinberg J also dismissed this argument, noting:
I do not accept that the very limited incorporation of the ICCPR into Australian domestic law which may arguably have been effected by s 138 has the effect of enabling a person whose rights are said to have been contravened under the treaty to vindicate justiciable rights at large, rather than merely to call upon the ICCPR as a basis for the exercise of an exclusionary discretion under the Evidence Act. Parliament has not, by a side-wind, incorporated the ICCPR in its entirety into Australian domestic law.
The application was accordingly dismissed on the grounds of a lack of jurisdiction by the High Court to determine the matter.
Commonwealth v Yarmirr
 FCA 1668; 168 ALR 426
Federal Court of Australia
Beaumont, von Doussa and Merkel JJ
In 1998, Olney J in Yarmirr v Northern Territory had ruled in favour of a native title claim to the sea and sea-bed in the Crocker Island region of the Northern Territory. The matter went on appeal in 1999. In Commonwealth v Yarmirr the Full Federal Court considered the decision of Olney J and revisited a number of issues regarding the compatibility of native title with the international law of the sea. A central issue was whether the Native Title Act 1993 (Cth) recognises and protects native title rights and interests in relation to the territorial sea and the sea-bed. While both appeals were dismissed and the findings of the trial judge upheld, the Full Court made some important observations.
With respect to issues of international law, the appeal considered the extent of the rights granted to a state under international law and the common law to the territorial sea. Justice Merkel undertook an exhaustive review of state practice, relevant international law, and the views of publicists on this issue before concluding:
In my view the foregoing discussion reveals that by 1930 the common law had adopted and received the principles of international law that a coastal state had sovereignty over its territorial sea of at least three nautical miles, and that sea formed part of the territory of the adjacent coastal state. … By 1930 the principles to which I have referred had been accepted by courts in common law jurisdictions as having attained the position of general acceptance…
Support that these principles had been adopted and received as part of the common law since 1930 was also found in the principles referred to by Merkel J in Nulyarimma v Thompson. Accordingly, it was found that international law had conceded to the Crown in right of the Commonwealth of Australia sovereignty with respect to the territorial sea which at least from 1930 extended to three nautical miles. This was further confirmed by the enactment of the Seas and Submerged Lands Act 1973 (Cth). Following a 1990 Proclamation the territorial sea had been extended to 12 nautical miles.
As to the application of the common law over the territorial sea, Merkel J was of the view that as the sovereignty of the Commonwealth of Australia extended to the territorial sea, so too did the common law extend over the territorial sea. Such an application of the common law could be abrogated or modified by statutes of the Commonwealth, the states or the territories. Further, the common law cannot be inconsistent ‘with the international law and the Conventions upon which the Commonwealth’s sovereignty is founded’. Accordingly, the submission of the Commonwealth that the common law does not apply with respect to the territorial sea was rejected by Merkel J.
The question of radical title to land, and how such title could be applied to the sea also was at issue before the Court. Merkel J was firm that no radical title could be acquired over the sea. Notwithstanding this finding:
subject to the constraints of international law the Crown’s enjoyment of supreme authority results in the sovereign enjoying the bundle of ultimate or paramount rights or powers acquired over the sea upon acquisition of sovereignty… While those rights and powers do not constitute radical title they are equivalent to the ultimate and paramount rights and powers gained over land by the sovereign upon gaining sovereignty.
Native title rights could therefore be recognised over the territorial sea, subject to certain limitations arising under international law such as the right of innocent passage.
On the issue of whether there should exist exclusive possession of the sea area, the Court rejected any grounds for such a finding. In particular, it was noted that such a claim would contradict ‘the right of innocent passage allowed by international law rules which have been acknowledged by Australia both internationally and in the municipal legislation…’. It was also recognised by Merkel J that the sovereign rights of the Commonwealth with respect to the territorial sea were limited by the right of innocent passage. While the relevant conventions recognising that right had not been incorporated into municipal law, the extension of Australian sovereignty over the territorial sea had remained subject to the right of innocent passage: ‘any native title right and interest that the claimant group can claim and establish in respect of the territorial sea is subject to and cannot derogate from the right of innocent passage.’
One issue that arose for consideration in the appeal was the status of various bays under both international and municipal law. In this context, the Court had the opportunity to make various observations regarding the international law as it applied to bays. In the case of historic bays, Beaumont and van Doussa JJ noted the developments in international law and the views of various publicists. However, it was stated that on the evidence presented to the Court it was difficult to accept that any of the bays were historic bays. This view was supported by no historic bays having been recognised as such under the provisions of the Seas and Submerged Lands Act 1973 (Cth). In the case of ‘juridical bays’, Beaumont and van Doussa JJ were prepared to adopt the approach of the Permanent Court of Arbitration in the North Atlantic Fisheries Case, in which emphasis was placed upon the understanding of the term ‘bays’ in a geographical sense with some reliance also placed upon the use of a ‘ten mile line’ drawn across the entrance of the bay. Factors considered relevant were:
• The relation of its width to the length of penetration inland;
• The possibility and the necessity of its being defended by the state;
• The special value that it has for the industry of the inhabitants of its shores;
• The distance that it is secured from the highways of nations of the open sea; and
• Other circumstances.
These factors remained relevant even in light of the 1958 Convention on the Territorial Sea and Contiguous Zone and the 1982 United Nations Convention on the Law of the Seawhich had adopted similar approaches to the definition of bays. On these grounds Mountnorris Bay, Malay Bay, Somerville Bay, Palm Bay, and Mission Bay were all not considered to be juridical bays.
Buzzacott v Minister for the Environment
 FCA 1192; 165 ALR 621
Federal Court of Australia
Wilcox, Whitlam and Merkel JJ
In Nulyarimma v Thompsonand Buzzacott v Minister for the Environment, two separate claims of genocide being committed against indigenous Australians were joined and heard together. In Buzzacott, proceedings were commenced against the Minister for the Environment, Senator Robert Hill, and the Minister for Foreign Affairs, Mr Alexander Downer, alleging acts of genocide through their failure to apply for inclusion under the 1972 Convention for the Protection of the World Cultural and Natural Heritage of the lands of the Arabunna People, which included Lake Eyre in South Australia. Justice Merkel was the only member of the Court to give detailed consideration to the claims arising with respect to the failure to nominate certain properties for listing under the World Heritage Convention. A review was undertaken of the previous High Court decisions concerning the Convention, and the Federal Court decision in Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd.[135 ]The later decision was seen to support the view that a decision not to proceed with World Heritage listing was not justiciable before a municipal court. In relation to the interaction of the World Heritage Convention and the World Heritage Properties Conservation Act 1982 (Cth), Merkel J noted:
a decision not to apply for a listing has no consequences for the property under the World Heritage Act save that it remains unaffected by the Act. Thus, being one step further removed from a Proclamation, it is even more difficult to contend that any person’s rights or interests are affected by a decision not to nominate a property for World Heritage listing. Further, as was pointed out earlier in these reasons in respect of the Genocide Convention, a Convention does not form part of the municipal law of Australia. Accordingly, it cannot be relied upon as conferring any justiciable right upon an individual.
Noting the decision of the High Court in Teoh, and the reliance in this instance upon the provisions of the World Heritage Convention, Merkel J was of the view that ‘the indirect role of conventional international law’ was of no assistance as a direct source of individual rights and obligations.[138 ]The application therefore failed as it relied upon non-justiciable claims.
A Raptis & Son v South Australia  HCA 36; (1977) 138 CLR 346 22
AB v The Queen  HCA 46; (199)  HCA 46; 165 ALR 298 15
Abebe v Commonwealth of Australia; Re Minister for Immigration and Multicultural Affairs of the Commonwealth & Anor; Ex parte Abebe  HCA 14; 162 ALR 1; 73 ALJR 584 9, 10
Adan v Secretary of State for the Home Department  UKHL 15;  2 WLR 702 14
Al-Anezi v Minister for Immigration and Multicultural Affairs  FCA 355 11
AMS v AIF  HCA 26; (1999) 163 ALR 501; (1999) 73 ALJR 927 5
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 11
Attorney-General of the Government of Israel v Eichmann (1961) 36 ILR 5 3, 4
Barton v Commonwealth  HCA 20; (1974) 131 CLR 477 15
Buzzacott v Minister for the Environment  FCA 1192; (1999) 165 ALR 621 1, 23
Chan Yee Kim v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 10, 11
Chow Hung Ching v R  HCA 37; (1948) 77 CLR 449 4
Collins v State of South Australia  SASC 257 16
Commonwealth v Yarmirr  FCA 1668; (1999) 168 ALR 426 20
Compania Naviera Vascongada v SS Cristina  AC 485 4
Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45 17
Diatlov v Minister for Immigration and Multicultural Affairs  FCA 468; (1999) 167 ALR 313 11
Dietrich v R  HCA 57; (1992) 177 CLR 292 7, 19
Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293 14
Kramer v Attorney General  AC 528 9
Kruger v Commonwealth  HCA 27; (1997) 146 ALR 126 1
Mabo v Queensland (No 2) (1992) 175 CLR 1 7, 17
Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218 23
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 9, 10
Minister for Immigration and Ethnic Affairs v Teoh  HCA 20; (1995) 183 CLR 273 2, 7, 17, 18, 19, 23
Minister for Immigration and Multicultural Affairs v Abdi  FCA 299; (1999) 162 ALR 105 13
Minister for Immigration and Multicultural Affairs v Eshetu  HCA 21; (1999) 162 ALR 577 10
Minogue v Human Rights and Equal Opportunity Commission  FCA 85; (1999) 166 ALR 129 18, 19
Minogue v Williams  FCA 1585 19
Mutombo v Switzerland (1994) 15 Human Rights Law Journal 164. 13
Nagaratnam v Minister for Immigration and Multicultural Affairs  FCA 176; (1999) 164 ALR 119 12
North Atlantic Fisheries Case (1910) XI RIAA 167 22
Nulyarimma v Thompson  FCA 1192; (1999) 165 ALR 621 1, 21, 23
Oppenheimer v Cattermole  AC 249 9
Paramananthan v Minister for Immigration and Multicultural Affairs  FCA 1693; (1998) 160 ALR 24 12
Polyukhovich v Commonwealth  HCA 32; (1991) 172 CLR 501 2
R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 3)  UKHL 17;  2 WLR 827 3, 4
Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Eshetu  HCA 21; (1999) 162 ALR 577 10
Re Thompson; Ex parte Nulyarimma  ACTSC 136; (1998) 136 ACTR 9 1
Rishmawi v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 421 11
Savvin v Minister for Immigration and Multicultural Affairs  FCA 1265; (1999) 166 ALR 348 11
Sharples v Hill & Anor  HCA 30; (1999) 163 ALR 648 8
Sinanovic v R  HCA 40; (1998) 154 ALR 702 19
Sue v Hill & Anor  HCA 30; (1999) 163 ALR 648 8
Sykes v Cleary (No 2)  HCA 60; (1992) 176 CLR 77 8, 9
Thorpe v Commonwealth of Australia (No 3)  HCA 21; (1997) 144 ALR 677 1
Toonen v Australia 1 IHRR (1994) 97 18
Trimbole v Commonwealth  HCA 83; (1984) 155 CLR 186 15
Victoria v The Commonwealth (1996) 187 CLR 416 19
X v Minister for Immigration and Multicultural Affairs  FCA 995; (1999) 164 ALR 583 6
Y v Minister for Immigration and Multicultural Affairs  FCA 995; (1999) 164 ALR 583 6
Acts Interpretation Act 1901 (Cth) 17
Administrative Decisions (Effect of International Instruments) Act 1995 (SA) 17
British Nationality Act 1981 (UK) 8
Evidence Act 1995 (Cth) 19, 20
Human Rights (Sexual Conduct) Act 1994 (Cth) 18
Human Rights and Equal Opportunity Commission Act 1986 (Cth) 17
Immigration (Guardianship of Children) Act 1946 (Cth) 7
Judiciary Act 1903 (Cth) 19
Migration Act 1958 (Cth) 11, 12
Native Title Act 1993 (Cth) 20
Seas and Submerged Lands Act 1973 (Cth) 21, 22
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 13
Convention on the Law of the Sea 1982 22
Convention on the Prevention and Punishment of the Crime of Genocide 1948 2
Convention on the Rights of the Child 1989 6
Convention Relating to the Status of Refugees 1951 9
Convention Relating to the Status of Stateless Persons 1954 11
International Covenant on Civil and Political Rights 1966 6, 16, 18, 19
[*] Associate Professor, Faculty of Law, University of Sydney.
[**] Doctoral Candidate, University of Cambridge.
 See the decisions in Thorpe v Commonwealth of Australia (No 3)  HCA 21; (1997) 144 ALR 677; Kruger v Commonwealth  HCA 27; (1997) 146 ALR 126.
 Re Thompson; Ex parte Nulyarimma  ACTSC 136; (1998) 136 ACTR 9.
 1037 UNTS 151;  ATS No 47.
  FCA 1192; (1999) 165 ALR 621, 641 per Merkel J.
 78 UNTS 227;  ATS No 2.
  FCA 1192; (1999) 165 ALR 621, 627 per Wilcox J.
 Ibid 627 per Wilcox J; in this context reference was made to the High Court’s judgement in Polyukhovich v Commonwealth  HCA 32; (1991) 172 CLR 501.
 Ibid 628 per Wilcox J; reference was made to the High Court decision in Minister for Immigration and Ethnic Affairs v Teoh  HCA 20; (1995) 183 CLR 273.
 Ibid 629 per Wilcox J.
 In this context, reference was made to the following essays: I A Shearer, The Relationship between International and Domestic Law in B Opeskin and D R Rothwell (eds), International Law and Australian Federalism (1997) 34; and A Mason, ‘International Law as a Source of Domestic Law’ in ibid 210.
  FCA 1192; (1999) 165 ALR 621, 630 per Wilcox J.
  UKHL 17;  2 WLR 827.
 (1961) 36 ILR 5.
  FCA 1192; (1999) 165 ALR 621, 636 per Whitlam J.
 Ibid 637 per Whitlam J.
 Ibid 638 per Whitlam J.
 In this respect Merkel J noted at  FCA 1192; (1999) 165 ALR 621, 672:
While understandably, many Aboriginal people genuinely believe they have been subjected to genocide since the commencement of the exercise of British sovereignty over Australia last century, it is another thing altogether to translate that belief into allegations of genocide perpetrated by particular individuals in the context of modern Australian society. In the present matter none of the allegations relied upon by the appellants are capable of raising an arguable case that any of the persons the subject of the proposed warrants and informations have engaged in any conduct that is capable of constituting the crime of genocide under international and domestic law.
[18 ]  HCA 37; (1948) 77 CLR 449, 477.
  FCA 1192; (1999) 165 ALR 621, 653.
 Here reference was made to the decision in Compania Naviera Vascongada v SS Cristina  AC 485, 497 per Lord Macmillan.
  FCA 1192; (1999) 165 ALR 621, 653-655 per Merkel J.
 Ibid 656 per Merkel J.
 Ibid 662 per Merkel J.
 Ibid 666-667 per Merkel J.
 Ibid 668.
 Australian Constitution, s 92.
 999 UNTS 171;  ATS No 23; art 12(1).
 1249 UNTS 13;  ATS No 9; art 28.
 (1999) 163 ALR 510, 515 per Gleeson CJ, McHugh J and Gummow J; 558 per Hayne J.
 Ibid 545 per Kirby J; 571-572 per Callinan J.
 Including, in addition to the two instruments already referred to, the 1989 Convention on the Rights of the Child  ATS No 4.
 (1999) 163 ALR 510, 515 per Gleeson CJ, McHugh J, and Gummow J; 545-546 per Kirby J; Callinan J held that there was no ambiguity in the municipal legislation: 572.
 Ibid 545.
 See above n 31.
 See above n 8.
  FCA 995; (1999) 164 ALR 583, 597 per North J.
  FLC 92-755.
  FCA 995; (1999) 164 ALR 583, 597.
 Ibid 600; reference was also made to Mabo v Queensland (No 2) (1992) 175 CLR 1, and Dietrich v R  HCA 57; (1992) 177 CLR 292.
 Ibid 601.
  HCA 30; (1999) 163 ALR 648, 677 per Gaudron J.
 The Court had previously been required to consider the same question in Sykes v Cleary (No 2)  HCA 60; (1992) 176 CLR 77.
 Gleeson CJ, Gaudron, Gummow and Hayne JJ. The other members of the Court were of the opinion that the Court did not have jurisdiction. Consequently, they did not have to decide the remaining issues.
  HCA 30; (1999) 163 ALR 648, 675 per Gleeson CJ, Gummow and Hayne JJ, 695 per Gaudron J.
 Ibid 662.
 Ibid 696 per Gaudron J, quoting from Sykes v Cleary (No 2) above n 43, 135-136 per Gaudron J.
 Eg, Kramer v Attorney General  AC 528, 537; Oppenheimer v Cattermole  AC 249, 263-264, 278-279.
  HCA 30; (1999) 163 ALR 648, 696.
 18 UNTS 150;  ATS No 5; art 1A(2).
 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574.
  HCA 14; (1999) 162 ALR 1, 24-25 per Gleeson CJ and McHugh J; 52, 54-55 per Gummow and Hayne JJ.
 Following Minister for Immigration and Ethnic Affairs v Guo above n 51, 575-576.
  HCA 14; (1999) 162 ALR 1, 25 per Gleeson CJ and McHugh J.
 Ibid 52 per Gummow and Hayne JJ.
 Ibid 596-597, 598.
 Quoting from Dawson J in Chan Yee Kim v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 398. See also Gummow J (1999) 162 ALR 577, 612.
 Chan Yee Kim above n 58, 399, 405, 414-415, 432.
 Minister for Immigration and Ethnic Affairs v Guo above n 51, 570-571.
 (1999) 162 ALR 577, 598.
 Ibid 612.
 Above n 58, 415.
 See above n 50.
[66 ] See the decisions in Rishmawi v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 421; Al-Anezi v Minister for Immigration and Multicultural Affairs  FCA 355; Savvin v Minister for Immigration and Multicultural Affairs  FCA 1265; (1999) 166 ALR 348.
  FCA 468; (1999) 167 ALR 313, 320; support for this proposition was found in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225.
 360 UNTS 130;  ATS No 20.
 606 UNTS 267;  ATS No 37.
  FCA 468; (1999) 167 ALR 313, 321.
  FCA 1693; (1998) 160 ALR 24.
  FCA 176; (1999) 164 ALR 119, 128.
 Ibid 130.
  ATS No. 21.
  FCA 176; (1999) 164 ALR 119, 129. It was also noted: ‘Furthermore, the Committee against Torture would have considered any complaint by Mr Nagaratnam about such threatened breach of Art 3(1) and his prospects of success before the committee on any such complaint would appear to have been high, assuming that the committee found the facts to be as the tribunal had found them to be.’  FCA 176; (1999) 164 ALR 119, 129 per Lee and Katz JJ.
 See the decision in Mutombo v Switzerland (1994) 15 Human Rights Law Journal 164.
 See above n 50.
  FCA 299; (1999) 162 ALR 105, 112; noting with approval the decision in Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293.
 Adan v Secretary of State for the Home Department  UKHL 15;  2 WLR 702.
  FCA 299; (1999) 162 ALR 105, 115.
 Ibid 116.
 Ibid 117.
 Ibid 118.
 Gummow, Kirby and Callinan JJ; McHugh and Hayne JJ dissenting.
 1974 Extradition Treaty between the United States and Australia 1041 UNTS 97;  ATS No 10; as amended by a 1990 Protocol amending the Treaty on Extradition  ATS No 43; Art XIV; Extradition Act 1988 (Cth), s 42.
 Eg, Barton v Commonwealth  HCA 20; (1974) 131 CLR 477; Trimbole v Commonwealth  HCA 83; (1984) 155 CLR 186.
  HCA 46; (1999) 165 ALR 298, 299. Although not determining the question definitively, Hayne J agreed with McHugh J, saying that ‘it may be doubted whether it is wholly accurate to speak of the appellant having waived his rights’: 329.
 Ibid 306-307.
 Ibid 312.
 Ibid 322.
 The rules were approved by the Economic and Social Council of the United Nations by Resolutions 663 C (XXIV) (31 July 1957) and 2076 (LXII) (13 May 1977).
 See above n 27.
  SASC 257 .
 Ibid .
 Ibid . Support for this view was also found in the decisions in Re Marion (1990) 14 Fam LR 427 per Nicholson CJ, 449, 451; R v Carbone (1995) 82 A Crim R per Legoe AJ, 17.
 The relevant provision of the Act provides: ‘Every schedule to an Act shall be deemed to form part thereof’: Acts Interpretation Act 1901 (Cth), s 13(2).
 See Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45 per Kirby P; Mabo v Queensland (1992) 107 ALR 1, 29 per Brennan J.
  SASC 257 [39-41].
 See above n 8.
  SASC 257 [45-46] making reference also to an Amnesty International News Release.
 Ibid .
 Ibid .
 See above n 27.
  FCA 85; (1999) 166 ALR 129, 138.
 See above n 8.
  FCA 85; (1999) 166 ALR 129, 139.
 See above n 27.
  FCA 1585 .
 See the decisions in Dietrich v The Queen  HCA 57; (1992) 177 CLR 292; Victoria v The Commonwealth (1996) 187 CLR 416; Sinanovic v R  HCA 40; (1998) 154 ALR 702.
 Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 219.
  FCA 1585 .
 Here Weinberg J disagreed with the views of Millhouse J in Collins v South Australia  SASC 257; see  FCA 1585 .
  FCA 1585, .
 (1998) 156 ALR 370; see (1998) 19 Aust YBIL 146.
  FCA 1668; (1999) 168 ALR 426, 524 per Merkel J.
  FCA 1192; (1999) 165 ALR 621, 653-655 per Merkel J.
  FCA 1668; (1999) 168 ALR 426, 525-527 per Merkel J.
 Ibid 528 per Merkel J.
 Ibid 529 per Merkel J.
 Ibid 531 per Merkel J.
 Ibid 532 per Merkel J.
 Ibid 477 per Beaumont and van Doussa JJ.
 Ibid 537 per Merkel J.
 Ibid 464-465 per Beaumont and van Doussa JJ.
 (1910) XI RIAA 167; support for this approach was also found in A Raptis & Son v South Australia  HCA 36; (1977) 138 CLR 346.
  FCA 1668; (1999) 168 ALR 426, 466-467 per Beaumont and van Doussa JJ.
 516 UNTS 205;  ATS No 12.
  ATS No 31.
  FCA 1668; (1999) 168 ALR 426, 466-470 per Beaumont and van Doussa JJ.
 See the discussion above.
 1037 UNTS 151.
 (1987) 75 ALR 218.
  FCA 1192; (1999) 165 ALR 621, 675 per Merkel J.
 Ibid 676 per Merkel J.
 Related claims concerning breach of a fiduciary duty, duty of care, and genocide were also dismissed: ibid 676-678 per Merkel J.